Such a claim is untenable, however. Deterrence begins with fear, and while brutal dictators fear many things, legal proceedings by international bodies lacking independent organs of enforcement are unlikely to be one of them. Locked in a permanent struggle for survival, the average war criminal will probably view the prospect of trial and imprisonment as no worse than what his internal and external enemies have in store for him if he should lose his grip on power—a failure that would anyway have to happen before any trial could take place. As John Bolton, one of America’s leading scholars opposed to the ICC (and today an under secretary of state in the Bush administration), put it in The National Interest:

Unless one can persuasively contend that the nations of the world are more likely to send their sons to die on a battlefield in a case where arrest warrants have been issued than in a case where no permanent international court exists to issue them, the ICC will have no effect on the calculations of such regimes. Which returns us to where we began: As long as the armies of the world are built for the protection of the nations that build them, and are not beholden to a single world government, a permanent international court contributes little to deterring war crimes, even as it opens the door to endless litigation against officers and leaders of democratic countries involved in legitimate military operations.

For those democracies which have acceded to the Rome treaty, however, the ICC poses a more profound problem. By giving up some of their sovereign rights to a foreign tribunal that is not accountable to their own citizens, these countries in Europe and elsewhere have compromised on many of the basic tenets of democratic governance: That one should be legally bound to answer only to the laws passed by one’s elected legislature and the rulings of one’s democratically appointed judges; that the interests of national security, while never justifying crimes against humanity, nonetheless should be the sole responsibility of elected leaders, and not left to the judgment of unaccountable judges appointed by external regimes; that it is the task of government to protect citizens against foreign agents, whether they take the form of armed assailants or legal institutions. As Paul B. Stephan, a professor of law at the University of Virginia, has argued, any new intrusion of international law of the kind represented by the ICC “encroaches on democracy by taking off the table choices that democratic institutions, whether federal, state, or local, wish to make…. Each of these developments shrinks the realm of democratic public decision-making and makes it less likely that lawmaking will reflect the popular will.” At a time when liberal, democratic regimes have given the world its greatest hope for the betterment of human governance, the ICC undermines that hope by undermining the foundations upon which democracy is built.

 

In Israel, the question of which side to take in the contest between America and Europe over the International Criminal Court has not been a simple one. On the one hand, memories of the role of the Nuremberg trials in punishing Nazi officials have made Jews generally sympathetic to the desire to punish war criminals; on the other, the displays of anti-Semitism at international gatherings such as the World Conference Against Racism in Durban, South Africa, in September 2001 have served as a sharp reminder that the Jewish state can expect little in the way of fair play from international bodies. So, while Israeli political leaders with close ties to the European Union, such as former Foreign Minister Shlomo Ben-Ami, former Justice Minister Yossi Beilin, and Deputy Foreign Minister Michael Melchior, have championed the cause of Israeli participation, and even succeeded in December 2000 in convincing Israel’s government to sign the Rome statute, most of Israel’s leadership has grown suspicious of the European initiative. This past June, the national unity government of Ariel Sharon decided, by a near-unanimous vote, to withdraw Israel’s signature. This decision was welcomed even by some of Israel’s most dovish commentators, including the daily Ha’aretz, which argued that “At the heart of the ICC stand good intentions, but Israel cannot rely on them or think that it will get a fair trial. Israel’s bad experience with many international organizations… raises the suspicion that the new institution will also be politicized and aimed at harming Israel.”

Indeed, there is good reason to fear that the ICC will put Israel high up on its prosecutorial agenda. The Jewish state has long played the role of pinata for politicized international bodies like the General Assembly: Israel is small and diplomatically isolated, making it an easy mark for the self-righteous harangues of the nations; it boasts an open society, making the collection of evidence infinitely easier than in countries like Syria or North Korea; and it is mired in a prolonged military conflict on several fronts, creating a constant flow of events and rumors which form the substance of accusations. At times, the bias of these bodies succeeds in distorting beyond recognition the nature of the Arab-Israeli conflict. As Jeremy Rabkin has written, “To judge by international authorities… Israel is not just a country with some faults but is the world’s most odious regime. The UN Human Rights Commission, for example, voted six condemnations of Israel in 2001 and eight condemnations in 2002, though no other state has ever received more than one condemnation in the same year.” Indeed, over the past two years, the Human Rights Commission has been a stunning example of anti-Israel bias, systematically ignoring acts of terror against Israel while issuing a string of caustic condemnations of the Jewish state. In October 2000, for example, just weeks after the Palestinian Authority launched the present terror war against Israel, the commission passed a resolution which made no mention of Palestinian atrocities, but instead decried “the disproportionate and indiscriminate use of force in violation of international law by the Israeli occupying power against innocent unarmed Palestinian civilians…. The deliberate and systematic killing of civilians and children by Israel constituted a flagrant and grave violation of the right to life and a crime against humanity.”

Nor should the contents of the Rome statute give Israelis reason for comfort. Some of the “war crimes” listed are so vaguely worded that they can be applied to a wide variety of acts that are unavoidable in any real war—such as the clause barring “outrages upon personal dignity, in particular humiliating or degrading treatment.” Others are tailor-made for restricting states that are fighting against terrorist groups, such as the ban on “intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects… which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated”—which, when taken in the context of an ongoing battle against terrorists using densely populated civilian areas as cover, can be easily interpreted by a politicized court to address almost any serious Israeli operation. And then there is the as-yet- undefined category of “crimes of aggression” appearing in Article 5, which may open the door to interpreting nearly every pre-emptive move on Israel’s part as an indictable offense.

But the clause most clearly targeted at Israel is the one that defines as a war crime “the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies.” This definition was reportedly inserted into the Rome treaty after an intensive campaign by the delegations from Syria and Egypt. Given that UN bodies view Israel as an occupying power in every inch of the territory it captured in 1967, this provision would appear to make war criminals out of every Israeli leader, housing minister, building contractor, or even homeowner who contributes to the expansion of Jewish communities anywhere in Judea, Samaria, Gaza, or the Golan Heights, or in the northern, eastern, and southern neighborhoods of Jerusalem. Israel’s attorney general, Elyakim Rubinstein, told the Knesset Committee on Law, Constitution, and Justice in June of this year that “The ICC is a great unknown for us…. We do not know what it will mean for Jewish settlement in Judea, Samaria, and Gaza, or in the neighborhoods of Jerusalem—it could well be that all new building in these areas will be considered a war crime.” Alan Baker, the legal adviser to the Foreign Ministry, put the point more emphatically: “This document gives no one immunity.… Anyone involved in decision-making connected to settling citizens in conquered territory is liable to be arrested, beginning with the prime minister and down to the last citizen.”

Israeli ratification of the treaty would make matters worse. In recent months, Israeli law-enforcement and military officials have found themselves forced to reassure jittery soldiers and pilots that their government will protect them from the reach of the ICC. But ratification would make any such protection a violation of international law, and it might not even hold up in Israel’s courts, which in recent years have given significant weight to the obligations arising from such multilateral treaties. With the issuance of a warrant, Israel would be treaty-bound to arrest the accused—even a sitting prime minister—and extradite him to the Hague. Israel would also be obligated to hand over classified documents, such as war-cabinet discussions or top-secret intelligence briefs, which the court believed pertinent. Perhaps it is hard to imagine Israel, or any other healthy democracy, actually cooperating in such cases. But it is easy to imagine the international outcry and the real political damage that would result from non-compliance—a no-win situation that Israel’s enemies would try to reproduce at every opportunity.

Given the dangers inherent in the court, Israel was surely right to withdraw its signature from the Rome treaty. Yet the ICC still represents a serious threat to the sovereignty of states, and it is safe to say that the clash between the American and European visions has only just begun. With time, defenders of the democratic way of life will come to understand the real problems of the International Criminal Court: That it is certain to become just as politicized as the many other comparable bodies created over the past half-century; that its invasive powers undermine bedrock principles of free and responsible democracy while limiting the ability of lawful countries to defend themselves militarily; and that its deterrent value against actual war crimes is illusory. The court’s supporters in Israel and elsewhere undoubtedly see it as a victory for the cause of international justice and a step towards a more enlightened world. But we have been here before. By seeking to give up their hard-won sovereignty to an international tribunal, they have again fallen into the trap of confusing global politics with universal morality, and the results are a foregone conclusion.

 

David Hazony, for the Editors

October 15, 2002